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Understanding Failure to Identify and The Right to Remain Silent

“True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others.” Jonathan Sacks.

HOUSTON– From the incident involving Marlin Gipson and Precinct One Constable Alan Rosen is chock full of lessons learned when Black men and women have to deal with police.
Far too many African-American men and others too also have been brutally mistreated, killed or shot down without provocation by the “Boys on Blue” because of a lack of understanding on how to have a positive encounter with police.
One of the key lessons deals with understanding Failure to Identify law and a Citizen’s Right to Remain Silent.
On July 18, 2017, Gipson and his brothers were out cutting yards when they were  confronted by a Precinct 1 Constable Deputy. He claimed that they allegedly “fit the description” and wanted to question them about what we were doing in the neighborhood. At the time, the men had lawnmowers, weedwhackers and leafblowers.
Gipson also allegedly was also going door to door putting business cards out in the area to advertise and offer his services to the community.
According to the video released on the incident, the Precinct One Constable deputy Shane Cates approached the Black man and begin to question him about what he was out in the open doing going door to door in the subdivision. The Police allegedly had only reason used to question the hard working youth was the alleged increase in property crimes in the area. It was that alleged reason that was used as an opportunity to stop Gipson and question him.

As the conversation continued allegedly there was some obvious miscommunications and misunderstanding between the two.

The officer asked for identity information and Gipson countered allegedly asked for the officer’s name and a card, but allegedly when the deputy approached Gipson during the discussion, he pulled out handcuffs moments after a non-confrontational response from the citizen to the officer.

The video shows how the deputy then reached for his handcuffs and told Gipson to turn around and place his hands on his head and the 21-year-old began to walk away. Gipson noted later that if he does not act and do something about what was happening to him, he was afraid someone else could get hurt. In his own words, “I was scared of what might happen next so I backed up slowly and started heading home,” he said.

Police–Citizen encounters
According to Wikipedia, in the United States, interactions between police and citizens fall into three basic general categories: consensual (“contact” or “conversation”), detention (often called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)), or arrest, “Stop and identify” laws pertain to detentions.

Different obligations apply to drivers of motor vehicles, who generally are required by state vehicle codes to present a driver’s license to police upon request.

At any time, police may approach a person and ask questions. The objective may simply be a friendly conversation; however, the police also may suspect involvement in a crime, but lack “specific and articulable facts”[4] that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify himself or answer any other questions, and may leave at any time.[5] Police are not usually required to tell a person that he is free to decline to answer questions and go about his business;[6] however, a person can usually determine whether the interaction is consensual by asking, “Am I free to go?”[7][8]
Reasonable Suspicion
A person is detained when circumstances are such that a reasonable person would believe he is not free to leave.[9]
Police may briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Many state laws explicitly grant this authority. In Terry v. Ohio, the U.S. Supreme Court established that police may conduct a limited search for weapons (known as a “frisk”) if they reasonably suspect that the person to be detained may be armed and dangerous.
Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer.[10] However, many states have “stop and identify” laws that explicitly require a person detained under the conditions of Terry to identify himself to police, and in some cases, provide additional information.

A detention requires only that police have reasonable suspicion that a person is involved in criminal activity. However, to make an arrest, an officer must have probable cause to believe that the person has committed a crime. Some states require police to inform the person of the intent to make the arrest and the cause for the arrest.[14] But it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, his or her belongings, and his or her immediate surroundings.
If a person is under arrest and police wish to question him, they are required to inform the person of his Fifth-Amendment right to remain silent by giving a Miranda warning.
However, Miranda does not apply to biographical data necessary to complete booking.

The Failure to Identify
Failure to Identify is defined in Section 38.02 of the Texas Penal Code as follows:
(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
The Failure to Identify statute has two different facets. First, the law requires you to give your name, address and date of birth if you are placed under arrest by the police. Secondly, it criminalizes giving false or fictitious information to a peace officer, but this only applies if you have been lawfully arrested, lawfully detained or you are a witness to a crime.

A Failure to Identify crime in the state of Texas gives police officers the right to arrest you if they believe you have intentionally refused to give them your name and other identifying information (or if you give false information about yourself) when you have been arrested or detained or if you are a witness to a crime. The punishment for this offense ranges from a Class C Misdemeanor to a Class A Misdemeanor, depending on the specific allegations.
It must be noted that here that it is not a crime to refuse to provide your name or other biographical information when you are questioned as a witness.
On The Right to Remain Silent

This issue has been brought before the Supreme Court of the United States in the case of United States v. Hubbell, 530 U.S. 27 (2000), at 34–38.

The Supreme Court decided that this right only applies to communication that is “testimonial,” incriminating, and compelled. The Court also decided that this meant that names and biographical identifying information is not protected by the 5th Amendment right to remain silent.

So, your right to remain silent doesn’t extend to giving your name, address, or date of birth, and if you are arrested, then under Texas law, you must provide it.

There are a number of possible penalties for failure to identify.
If you are charged under Section (a) of the statute (which refers to refusing to provide information), it is a Class C misdemeanor, punishable by up to a $500 fine.1 If you are charged under Section (b) of the statute (giving false information), it is a Class B Misdemeanor, punishable by up to 6 months in county jail and a $2000 fine.2
However, if you are a fugitive from law, which means you have a valid warrant issued for your arrest3, the punishment is increased by one level.4 Therefore a Class C Misdemeanor for refusing to identify becomes a Class B, and a Class B Misdemeanor for providing false information becomes a Class A Misdemeanor.
Another possible exception to the penalty range described above has to do with a minor representing that he or she is over 21. In that case, the punishment will be assessed under Section 106.07, Alcoholic Beverage Code.5
What If’s?
A person is confused when dealing with police and did not intend to refuse to give information, or to give false information. Can charges still result?
According to the Texas Penal Code, you must intentionally refuse to identify themselves or intentionally give false information in order to be convicted of the Failure to Identify crime. So if you did not purposefully refuse to identify yourself or give false information, then you should explain this to your criminal defense attorney so that you can help defend against this charge.

I.D. Need To Know’s
Refusing to identify yourself can mean that you tell an officer you refuse to provide that information, or even just not saying anything at all.
For example, if you are arrested by a police officer, and he asks where you live, if you were to say “I don’t want you to know.” That would be a refusal to provide information.
False or fictitious information means any sort of information that is not accurate, such as a nickname that is not your legal name or a home address that doesn’t actually exist.
For example, if you are detained by a police officer, and he asked for your name, if your real name is William and you said “John Doe,” you would have provided false information and would be guilty of the Failure to Identify offense.

Never Run or Flee
One of the escalating elements of the Gipson case that serves as a lesson learned is not to leave, run or flee the scene or leave when dealing with a questioning police officer.
It is dangerous and sends the wrong message and can set off a chain or reactions that can result in bodily injury or even untimely death.

Criminal Defense Attorney Paul Saputo, Saputo Law Firm, Dallas, Texas contributed information in this story modified July 17, 2017; and including Texas Penal Code Section 38.02(c)(1); Texas Penal Code Section 38.02(c)(2); Texas Penal Code Section 38.01(5); Texas Penal Code Section 38.02(d); Texas Penal Code Section 38.02(e); and Supreme Court case United States v. Hubbell, 530 U.S. 27 (2000).

By: Darwin Campbell